I filed my objection the the R&R today (see the previous post). This filing is my opportunity to convince the district judge that the recommendation issued by her magistrate judge was, well, poor, short-sighted, lacking in thoroughness, and overstepping its bounds.

This is the first time I’ve ever written an objection to an R&R, and it puts the author in a precarious position. On one hand, if I don’t strongly and clearly object, the R&R will be adopted and I’ll lose my motion. On the other hand, the magistrate is an officer of the court just as the district judge is, and for all I know they’re best friends, so any criticism must be delivered as respectfully and tactfully as possible.

The TSA has until Friday to file their own objection, which I don’t really expect them to do. After that, the district judge may rule at any time, so we’re looking at as early as Monday, but more likely several weeks from now.

Corbett v. US – Objection to R&R (.pdf)

The objection lists 5 exhibits which are not in the document. They are:

A – http://abcnews.go.com/Travel/miami-airport-tsa-officer-charged-assault-manhood-jokes/story?id=10583691
B – http://www.flyertalk.com/forum/travel-safety-security/1157130-tattoos-visible-body-scanner.html  (post #3)
C – http://www.usatoday.com/news/washington/2011-03-04-bodyscans04_ST_N.htm
D – http://www.wbtv.com/Global/story.asp?S=14142489
E – http://www.wate.com/Global/story.asp?S=13407686

A bit of a setback, unfortunately, but not a final decision. The district judge in my case requested her magistrate judge (sort of like an assistant judge who often does some of the legwork before the big event) give what’s known as a “Report and Recommendation” regarding my motion for a temporary restraining order. This is basically asking the magistrate for his opinion on whether or not the motion should be granted.

It seems that this magistrate judge ignored entirely all of my arguments on jurisdiction and (surprise, surprise) assumed all of the “facts” stated by the TSA are true. The one-sidedness of the R&R is astounding, as generally arguments are discussed and “shot down” by a disagreeing judge, rather than simply ignored. This, again, goes to show why a jury trial is necessary: a jury will require the TSA to prove their case, rather than assume it. [Note: it’s unclear if the magistrate judge took into account my last filing, which was opposition to the TSA’s motion to dismiss.]

R&R attached. My response, if I would like to file one (and I would ;)), is due within 10 days. I still have hope that the district judge will examine the facts and law much more carefully.

Corbett v. US – Magistrate’s Report and Recommendation on Motion for TRO (.pdf)

Still no update on the preliminary injunction, but the TSA filed its motion to dismiss yesterday (a day late, but I’m sure they’re busy :)). The TSA argues that US District Court has no right to review this case, because virtually anything the TSA does is an “order” which can only be appealed (in the US Court of Appeals) rather than subject to a new action on a constutional claim in district court.

The reason the TSA wants the court to see things this way is that there is an important distinction between the district and appellate courts: the district court conducts “fact finding,” such as discovery, witness testimony, etc., while the Court of Appeals would not. The result? No discovery, no witnesses, no jury (juries only decide on questions of fact), and the only facts that will be considered are any record the TSA presents to the court regarding its decision to strip search and molest thousands of passengers daily.

We’ve got a good shot at beating this, and my opposition is 17 pages of discussion on why the TSA cannot do this and the district courts should retain jurisdiction. I’ve attached both their argument and my opposition for anyone interested.

–Jon

Corbett v. US – Defendant’s Motion to Dismiss (Memorandum) (.pdf)
Corbett v. US – Opposition to Motion to Dismiss (.pdf)

I was doing research today into the other lawsuits filed against the TSA, and downloaded a complaint filed by a pair of Harvard Law students…

http://www.bloomberg.com/news/2010-12-01/airport-scanners-enhanced-patdowns-bring-lawsuit-by-massachusetts-pair.html

To my surprise, I found that I downloaded a nearly exact copy of my own complaint! I hope they didn’t submit it as their senior project. 😉

Redfern v Napolitano (.pdf)

***UPDATE*** Final version completed, filed, and attached.

Much of the work in a federal lawsuit is not in the courtroom, but rather in written arguments. Right now, a motion for a preliminary injunction is in front of the court, and the US replied in opposition (naturally — see previous post on blog). I’ve spent much of this week preparing a reply to their opposition, and I think I’ve produced a quality argument.

Let’s make it even better. Some of you may have legal experience, many likely do not, but it doesn’t require a law degree to make a coherent argument. So, I open the floor to you for your review, thoughts, ideas, and suggestions. Anything from a comma out of place to a great piece of case law you read that you think might fit.

My draft document is attached. Some rules:

1) The document gets filed on Monday, so the earlier you reply, the better. The latest reply that I can look at before filing is Monday at 9:00 AM.

2) This is essentially a reply to the government’s reply. Please read the government’s reply first (previous post). As background information, the motion at hand is a motion for preliminary injunction against the TSA using nude body scanners on me or “touching my junk.” (Preliminary injunctions are supposed to be narrow in scope, which is why the motion only relates to me, however if the motion is granted, the door is open for anyone to sue to get relief, not to mention the TSA will be forced re-look at their actions!)

3) You can post your thoughts in the comments or e-mail me directly -> jon at fourtentech.com.

4) Nothing will be construed as “legal advice.” You are either not a lawyer or are a lawyer giving a personal, non-professional opinion only. No attorney-client relationship created, and no compensation due.

Thanks for helping! I know that we all wish that there were something we could do to make this better, and hopefully this is a step in that direction. Together we can beat them!

–Jon

Reply to Opp to TRO (.pdf) (FINAL VERSION)

The US Department of Justice made its first filing in my case today, in opposition to my motion for a temporary restraining order and/or preliminary injunction, attached here for any who would like to review.  While nothing within was terribly surprising, a couple of points were interesting:

•  The DoJ implicitly affirms that they understand that we all have a constitutional right to travel.  However, they proceed to state that there “is no constitutional right to travel by a specific mode of transportation; Plaintiff has the option of traveling by car, bus, or train,” essentially putting it down in writing that the government’s position is, “Don’t like it?  Take the train.”  It goes without saying, but naturally this doesn’t work to overseas destinations (or even the 50th US state), and makes business travel impossible.  The train on my most frequently flown route (NY to Miami) takes about 30 hours — it’s not simply an inconvenience, but impractical.  …and we all know that the trains are next on the TSA’s list, as are buses, and soon enough, the highways.
   
• In order to get a temporary restraining order, one must show that it is unlikely that the other party will be harmed (or if they are, less so that the potential harm to me by not issuing the order).  To that end, part of my request for the temporary restraining order was a declaration that I’m not a terrorist, have no criminal record, and have no intention of blowing up a plane.  The DoJ’s response: A “would-be terrorist would make the same assurances.”  I’ll be sure to ask them if they have any examples of would-be terrorists going to court to petition for their constitutional rights, or perhaps they just assume that anyone opposed to being molested in the name of security may deserve suspicion of being a terrorist.

Next step is a reply from me, and the judge may rule at any time.  I’m confident that the government’s opposition is without merit and will be rejected by the Court — stay tuned!

–Jon

Defendant’s Opposition to TRO/PI (.pdf)

I’ve had several requests for the Word versions of my legal documents so that people can file their own suit against the TSA.  I’m not an attorney and can’t give you legal advice (so nothing in this blog should be construed as such), but since my suit only asks for an injunction rather than for money, it seems to me that filing additional suits asking for the TSA to be enjoined from their behavior won’t make things go any faster.  In other words, 1 injunction is just as good as 100.  You can believe that I’m pressing this suit forward as fast as possible, and faster and harder than any law firm would or could.

However, if you’ve been groped against your will by the TSA and want to ask for money damages, I do recommend (personally and not as an attorney) pursuing that.  Depending on what you’d like to sue for (which depends on your state’s laws), you may need to file a claim with the government before filing a suit, as the government is entitled to special rules when it comes to suing them.  (Note that my suit uses the US Constitution as the basis for its claim, instead of state or federal law, which allows me to bypass some of those special rules, as no rules are above the Constitution!  If only the TSA understood this…)

A quick Google search for “How to sue the United States” is a good place to start.  Take everything with a grain of salt, because law is not an exact science, and the Internet makes for a poorly controlled laboratory. 🙂  If you can afford it or find free one, a lawyer is great, especially if you haven’t ever filed a suit before, since you’ll end up with the entire Department of Justice working against you.

But, if you’re willing to do the research and want to do it yourself, I’d go for it.  I’m a firm believer that any determined citizen can petition the government for a redress of his or her grievances without an attorney.  After you figure out your cause of action (what you want to sue them for) and figure out any special obstacles you may encounter because you’re suing the US (including and especially, the proper party to sue: the US?  DHS?  Big Sis, in her official capacity?  …or as an individual?  …or the screener who molested you?  etc.), you’ll also want to read the current Federal Rules of Civil Procedure, which is essentially a guide to the rules of lawsuits in federal court.  It won’t teach you what to say, but it will tell you when and how you should (or must) say it.

As always, if I can be of any assistance to you in your struggle for your rights, please let me know, and definitely let me know if you file a suit, as I’d love to watch it progress!

–Jon

My name is Jon, and I’m an entrepreneur and a frequent traveler, both for my businesses and for personal travel.  My largest business works in technology, and quite simply, I need to fly to maintain my customer relationships.  About 2 weeks ago, the TSA introduced new screening policies at airport checkpoints all over the country.  To put it bluntly, travelers are given a choice between letting the TSA photgraph or touch your private parts.

The nude body scanners (also known as “AIT devices,” “backscatter x-rays,” and by at least one TSA agent, a “dick measuring device”) produce clear and graphic images of ones body.  The TSA justifies this by saying, “Well, only one person gets to see it, and he’s far away and can’t save the images.”  Even if we assume this to be true, it does not make the virtual strip search any less of a virtual strip search, and doesn’t make it any more right.

If you decline the nude body scanners, the TSA requires you to submit to an “enhanced pat down,” during which they will be grabbing between your legs.  The TSA has been reported by many to have not only touched, but squeezed, lifted, and twisted the genitals, butt, and breasts of passengers for no reason other than that they purchased an air ticket.

The incidences of this have been plenty, and a simple Google or YouTube search will turn up plenty of results.  In one of the more troubling cases, a man recently declined to allow the TSA to touch “his junk” and was threatened with a $10,000 fine for non-compliance.

This afternoon, I filed lawsuit in Federal court in Miami requesting an injunction against the TSA to prevent them from touching or photographing our private areas without any reasonable suspicion.  Having grown up in New York and personally seeing the smoke rise from the towers that morning in 2001, I know the threat of terrorism is real, and I know we must defend ourselves.  This does not mean that the Constitution should be ignored, and indeed, the TSA has plenty of alternative screening procedures that are less invasive.  Besides the privacy issue, there have been health issues raised as to the radiation produced by the imaging devices, as well as efficacy issues, with no good studies having been done to show that this imagery makes us any safer.

The best defense for an airplane is the travelers, who I’m confident post-9/11 would stand up and beat the crap out of anyone who tried to hijack a plane.  Indeed, the passengers of aircraft since 9/11 have stopped multiple terrorist attacks, while I know of not one time that the TSA has stopped a terrorist with an explosive from going through security.  So, I urge the TSA to not make us feel like criminals or try to force us to be submissive to their sexual assaults, as we, not you, are the last line of defense on that plane.

My lawsuit asks for no money damages and is entirely self-funded.  I expect it will end up being expensive and if you would like to make a donation, you can send it via PayPal (e-mail below), but the more important donation is for you to write to and call your legislators, and if travelling, refuse to allow the government to photograph or touch you (and your family) in a way that makes you uncomfortable.  Please don’t let the government treat you like this.  By standing up for yourself, you stand up for all of us.

The case is Corbett v. US, 10-CV-24106, filed in US District Court for the Southern District of Florida.  If you are an attorney interested in assisting, please also feel free to contact me.

Thanks for reading,

–Jon
jon [at] fourtentech.com

Corbett v. US – Complaint (.pdf)